Pietermaritzburg High Court Judge Piet Koen on Tuesday questioned the basis of a criminal complaint lodged against state advocate Billy Downer, for allegedly leaking former president Jacob Zuma’s confidential medical records to the media.
Koen said he was not persuaded that the disclosure of a letter from Zuma’s doctors in the state and defence’s court papers constituted “an actionable violation” of his rights to privacy.
Koen, in his judgment dismissing Zuma’s application to recuse Downer from his corruption trial, said the right to privacy – like most fundamental rights, except the right to life – is not an absolute right, and is subject to certain limitations.
He said when the medical condition of an accused person is made an issue, the rights of members of the public, the proper administration of justice and the interests of justice generally must also be considered.
“These are all considerations, which a court will still have to consider once fully ventilated and after all medical reports relating to Mr Zuma’s treatment, medical parole, and the like, have been produced, should the medical condition of Mr Zuma be or remain a material issue for determination in further legal proceedings.
“I am not persuaded that the disclosure of the contents of the letter constituted an actionable violation of Mr Zuma’s rights,” Koen said in his 109-page judgment.
The doctor’s letter, from Brigadier-General Dr Mcebisi Zukile Mdutywa, became a subject of contention between the state and Zuma’s legal team in August after he was unable to attend his corruption trial due to an undisclosed medical illness.
At the time, Zuma was hospitalised and it was revealed in the letter that he had suffered a “traumatic injury” late last year and needed “extensive emergency treatment”.
The state said it was not satisfied with the “vague generalities” contained in the letter as Zuma wanted the case to be postponed. This led to Koen ordering that the state could allow a “medical practitioner of its choice to examine Mr Zuma to assess his ability to stand trial for corruption and for that doctor to be a witness, if necessary”.
The letter is also the subject of the criminal complaint Zuma laid last week at the Pietermaritzburg Police Station against Downer.
State did not jump the gun
On Tuesday, Koen clarified that the state did not jump the gun by asking its doctors to examine whether Zuma was indeed fit to stand trial.
“I have clarified in my judgment, that the order which I granted, was unconditional and not qualified in that way. And that Mr Zuma was required to submit to medical examinations by a doctor or doctors of the state’s case to determine whether he was fit to attend court,” he said.
Downer’s ‘title to prosecute’
Earlier, Koen dismissed Zuma’s special-plea application to remove Downer from prosecuting his corruption case. Zuma said he would appeal the high court’s ruling.
The former president moved his special plea in May, when he also pleaded not guilty to the charges of fraud and corruption he’s facing alongside French arms dealer Thales over a controversial multi-billion rand deal struck back when Zuma was KwaZulu-Natal MEC for economic development, in the 1990s.
In it, he sought to challenge Downer’s title to prosecute on the basis that, according to Zuma at least, he was biased.
He further wanted the entire National Prosecuting Authority (NPA) barred from trying him and to be acquitted without the case going to trial, because of the abuses he claims to have suffered.
But Koen found the question of a prosecutor’s title to prosecute was confined to his or her locus standi “and regularity as regards their appointment” and did not, as Zuma had contended, extend further than that.
“Allegations of bias, a lack of independence and impartiality as well as any feared infringements of fair trial rights are accordingly not to be decided under the rubric of a special plea that the prosecutor has no title to prosecute,” he said.
He found that even if taken at face value, Zuma’s complaints “do not affect the title, given its correct meaning”.
“I also conclude that there’s no basis to assign a wider meaning to the word ‘title’ to include instances of a lack of independence or impartiality or bias,” he said.
The arms deal corruption trial is set to resume on 11 April 2022.
Additional reporting by Bernadette Wicks